College Athletics Returns to the NLRB With Notre Dame ULP Charge

By Gregg Clifton, Christina Stylianou, and David Tango

The debate over student-athletes’ employment status has once again returned to the National Labor Relations Board (NLRB), this time drawing the University of Notre Dame into the dispute. Just weeks after the Dartmouth College Men’s Basketball team voted to unionize and be represented by the Service Employees International Union (SEIU) in an historic 13-2 vote and as the NLRB hearing contemplating the potentially misclassified employment status of USC’s football and men’s and women’s basketball players winds down, Notre Dame now finds itself at the forefront of yet another effort to advance NLRB General Counsel Jennifer Abruzzo’s mission to recognize student-athletes as employees pursuant to the National Labor Relations Act (NLRA) with the filing of an unfair labor practice charge against the school late last week.

Michael Hsu, co-founder of the College Basketball Players Association (CBPA) and a past unfair labor practice charge filer who has previously asserted allegations against other schools on behalf of college athletes, filed the unfair labor practice charge in the Indianapolis office (Region 25) of the NLRB alleging that Notre Dame violated Section 8(a)(1) of the NLRA by failing to classify its student-athletes as employees. The filing alleges that the university’s current characterization of all its student-athletes is a violation of the NLRA and limits the legal rights to which they should be entitled if they were properly classified as university employees. While the current charge against Notre Dame expresses a general allegation that all student-athletes at the school have been misclassified during the six-month statute of limitations period preceding the unfair labor practice charge filing, it is doubtful that the allegation will proceed on such a general and broad basis. It is likely that the charge will be amended to reflect a narrower focus, specifically identifying certain athlete groups.

The filing of the charge against Notre Dame is the latest in a series of NLRB activity involving college athletes. At Dartmouth, although the NLRB’s certification of the SEIU’s status as the bargaining representative for the men’s basketball team has been completed, negotiations for a potential collective bargaining agreement have yet to begin. Dartmouth has appealed the Regional Director’s Decision and Direction of Election and filed a Request For Review of her ruling, which concluded that the Dartmouth men’s basketball team members are Dartmouth employees and therefore eligible to vote for union representation. While the SEIU may challenge the school’s current refusal to bargain while the appeal is pending by filing an 8(a)(5) refusal to bargain charge, the union has not yet done so, and the negotiating process presently remains in a holding pattern while the four members of the Labor Board consider Dartmouth’s appeal.

The other ongoing college athletics-related NLRB matter of significance continues to unfold at the University of Southern California. Here, based upon an unfair labor practice charge filed by the National College Players Association and its leader and former college athlete Ramogi Huma, an NLRB administrative law judge is currently considering evidence in a lengthy hearing to determine whether USC’s football team and its men’s and women’s basketball team members are employees of USC, the PAC-12 Conference, and the NCAA, pursuant to a joint employer standard. If the NLRB’s administrative law judge concludes that joint employer status exists, it could have significant impact on the application of the NLRA and, although USC is a private university, it could subsequently lead to the extension of the NLRA’s protections to athletes at public universities who are presently excluded from the NLRB’s jurisdictional reach.

While the relevant facts involving a potential employment status finding at a nationally prominent athletic program like Notre Dame’s might differ from those at an Ivy League basketball program, the ultimate analysis will still focus on a similar set of factors. Although Notre Dame’s football program is famously independent of any conference affiliation and although Hsu’s charge fails to reference Notre Dame’s affiliation with the Atlantic Coast Conference for all other sports, the Regional Director of Region 25 will still need to process the charge by seeking similar evidence to that considered by the Regional Director in the Dartmouth case.

The crucial questions upon which detailed evidence will be offered will be whether Notre Dame athletes – and which athletes in particular, if the charge remains in its current amorphous state – perform work for Notre Dame in exchange for compensation and to what extent the university controls the work that is allegedly performed. It is important to note that the members of the Dartmouth basketball team were deemed to be employees despite having no athletic scholarships and a very limited role in revenue generation for a program that does not generate any profit for the school. While these facts were distinguished in the Regional Director’s decision in Dartmouth and a conclusion of employee status was still reached, the facts supporting an employee finding at Dartmouth will be present at Notre Dame and will need to be distinguished if Notre Dame wishes to assert an effective defense to the charge.

Gregg Clifton

Apart from the core factors to be analyzed by the Regional Director, one important distinction already sets Notre Dame’s charge apart from the Dartmouth case…Even though the charge against Notre Dame was legally filed by Mr. Hsu, it was not pursued or supported by any athletes at Notre Dame. The question remains, do student-athletes at Notre Dame want to secure employee status under the NLRA and become eligible for potential unionization? Currently, no members of any athletic team at Notre Dame have publicly expressed a desire to be considered employees of the University and, to date, no team or group of athletes has filed any type of petition with the NLRB seeking employee status and the right to be represented by a union. How will Region 25 Regional Director Patricia Nachand respond as the legal process moves forward through investigation of the charge and toward her review, consideration, and ultimate decision on the employment status of Notre Dame’s student-athletes on behalf of the NLRB? What, if any, student-athletes will voluntarily present testimony in support of Mr. Hsu’s charge? Will the NLRB seek to subpoena student-athletes to testify? Stay tuned as the focus of collegiate sports for the near future looks beyond the action on the playing field and continues to involve NLRB investigators and hearing officers.